Algeria Briefing to the Human Rights Committee

Transcription

1 [EMBARGOED FOR: October 2007] Public amnesty international Algeria Briefing to the Human Rights Committee September 2007 AI Index: MDE 28/017/2007 INTERNATIONAL SECRETARIAT, 1 EASTON STREET, LONDON WC1X 0DW, UNITED KINGDOM

2 TABLE OF CONTENTS TABLE OF CONTENTS...1 Introduction...1 Article 2: the right to an effective remedy...3 Amnesty measures adopted by the Algerian authorities...4 No effective remedy for victims of human rights abuses by armed groups...6 Victims of sexual violence at the hands of armed groups...11 No effective remedy for victims of human rights violations by state agents...12 Enforced disappearances...13 Article 3: equal rights of women and men...17 Legal discrimination against women...17 Marriage...18 Maintaining polygamy...18 Maintaining a matrimonial tutor...19 Child custody and guardianship...19 Unequal rights on dissolution of marriage...20 Obligation on father to ensure suitable home for children...20 Unequal Access to Inheritance...20 Penalization of consensual sexual relations...22 Violence against women...22 Laws on violence against women...23 Article 4: state of emergency...24 Article 6: right to life...25 Killings in the context of the conflict...25 Other unlawful killings...26 The death penalty...27 Article 7: the right not to be tortured...28 Methods and purpose of torture...28 Safeguards against torture not respected...29 Lack of investigations into claims of torture...31 Article 9: right to liberty and security...32 Article 12: right to freedom of movement...35 Article 13: rights of refugees and migrants...35 Article 14: right to a fair trial...37 The right of every person to a fair trial...37 Independence of the judiciary...38 Defence lawyers and equality of arms...39 Article 15: legality of criminal offences...40 Article 17: right to privacy...42 Article 18: right to freedom of religion...42 Article 19: right to freedom of expression...43 Article 21: right to peaceful assembly...44 Article 22: right to freedom of association...45 Article 24: right to protection of children...46 AI Index: MDE 28/017/2007 Amnesty International October 2007

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4 Algeria Briefing to the Human Rights Committee Introduction Amnesty International submits this briefing for consideration by the Human Rights Committee in view of its forthcoming examination of Algeria s third periodic report on measures taken to implement the provisions of the International Covenant on Civil and Political Rights (ICCPR). This briefing summarizes some of Amnesty International s main concerns on Algeria, as documented in a number of the organization s past reports. The organization highlights in particular its concerns about the failure of the state party to fully comply with its obligations under Articles 2, 3, 4, 6, 7, 9, 12, 13, 14, 15, 17, 18, 19, 21, 22 and 24 of the ICCPR. These concerns relate broadly to the failure of the state party to provide an effective remedy to victims of human rights abuses, continuing discrimination against women and a persistent pattern of secret detention and torture. Algeria submitted its third periodic report 1 to the Human Rights Committee in December 2006, six years late. Algeria s second periodic report to the Human Rights Committee was considered in At the time, the country was in the midst of an internal conflict, sparked by the cancellation in 1992 of the multi-party elections which the Islamic Salvation Front (Front Islamique du Salut, FIS), an Islamist political party, was widely expected to win. A state of emergency was declared, the FIS was banned and the military took power. Seeking to claim the electoral victory of the FIS by means of violence, armed groups targeted state institutions and increasingly civilians thought to have backed the military coup, or to have failed to conform to their conception of Islamic values. Armed groups have been responsible for widespread human rights abuses, including unlawful killings, abductions, torture and rape, abuses which Amnesty International abhors and condemns. The Algerian authorities also played a major part in escalating the violence to root out support for the FIS by some sections of the population, in the name of countering terrorism. The state security forces and, later, state-armed militia (referred to by the authorities as legitimate defence groups, self-defence groups or patriots ) committed massive human rights violations, including extrajudicial executions and other unlawful killings, enforced disappearances, secret and arbitrary detentions, and torture and other ill-treatment of thousands of real or suspected members or supporters of armed groups. Today, Algeria is emerging from more than a decade of violence in which as many as 200,000 people 2 are believed to have been killed. The Algerian government has sought to turn the page on the violence by adopting amnesty measures for members of armed groups who laid down their arms, in 1999 and 2000, and more recently in Although the level of violence has markedly reduced since the end of the 1990s, killings still occur today. According to 1 CCPR/C/DZA/3, 7 November It is not possible to give an exact number of those killed since 1992 in Algeria. The authorities estimated in 2006 that as many as 200,000 people may have been killed in the context of the violence. AI Index: MDE 28/017/2007 Amnesty International October 2007

5 2 Algeria: Briefing to the Human Rights Committee media reports, which rely on security sources and cannot be independently verified, more than 300 people were killed by either armed factions or government security forces in 2006, including over 70 civilians. 265 people were reported to have been killed between 1 January and 1 August in the context of continued fighting between security forces and remaining armed factions who have refused to surrender under the government amnesty measures. In 2007, there has been a resurgence of bomb attacks, some of which appear to have deliberately targeted civilians. For instance, on 11 April bomb attacks in Algiers killed 33 people and injured more than 200. On 6 September, a suicide attack in Batna killed at least 22 people and injured 107, after the attacker reportedly triggered a bomb in the middle of a crowd gathered for a visit by President Abdelaziz Bouteflika in the town. Amnesty International condemned both attacks. 4 Responsibility for these attacks was claimed by the Salafist Group for Preaching and Combat (Groupe Salafiste pour la Prédication et le Combat, GSPC) which, according to a statement posted in January 2007 on a website believed to be linked to the group, reportedly changed its name to the al-qa ida Organization in the Islamic Maghreb. The GSPC is alleged to be the main remaining armed faction fighting against the Algerian authorities, although its leadership, composition and motivations are more and more unclear. It is increasingly difficult to discern a clear rationale behind most attacks by armed factions, whose members are also believed to engage in other criminal activities, such as smuggling, protection rackets and money-laundering. The reported affiliation of the GSPC to al-qa ida seemed to correspond with an increasing targeting of civilians through the use of suicide and other bomb attacks. The grim legacy of the conflict weighs heavily on the Algerian people. No section of the society has been left untouched by the violence. Rather than addressing this legacy in conformity with their obligations under the ICCPR, the Algerian authorities have endorsed impunity and effectively deprived victims of their right to obtain truth, justice and reparations. The almost complete de facto impunity enjoyed by members of the security forces and state militia has been extended to members of armed groups, who have, since 1999, benefited from successive amnesty measures, failing to recognize the right of the victims to obtain an effective remedy for the violations to which they were subjected. Impunity has been firmly entrenched under recent presidential decrees, issued in February 2006, implementing the Charter for Peace and National Reconciliation, a framework document adopted by national referendum in Notwithstanding the decrease in violence and gross human rights abuses associated with the internal conflict, serious violations of the rights enshrined in the ICCPR continue in Algeria, including secret detention and torture by the Department for Information and Security (Département du Renseignement et de la Sécurité, DRS), a branch of the Algerian intelligence services, in the context of the government s counter-terrorism operations. Legal provisions 3 Algeria violence death toll more than doubles, Reuters, 1 August See Algeria: Amnesty International condemns Algiers bomb attacks (AI index MDE 28/009/2007, 11 April 2007) and Algeria: Amnesty International condemns suicide attack in Batna (AI index MDE 28/016/2007, 7 September 2007)

6 Algeria: Briefing to the Human Rights Committee 3 introduced in national law in 2004criminalizing torture, while welcome, have not put an end to persistent allegations of torture by members of the DRS. The Algerian authorities have taken many positive steps to address discrimination between men and women, which is entrenched in law and in practice. They substantially amended the Family Code and the Nationality Code in 2005 to give women more rights, by adopting Decree no of 27 February 2005, amending and completing Law no of 9 June 1984, the Family Code and Decree no 05-01, amending the Nationality Code. A law criminalizing sexual harassment in the workplace was adopted in The authorities allowed a visit by the United Nations (UN) Special Rapporteur on Violence Against Women in February This is notable because, apart from a visit by the UN Special Rapporteur on freedom of religion or belief in 2002, and the principle of a visit of the Special Rapporteur on the promotion and protection of the right to freedom of opinion and expression, the Algerian government has not acceded to other requests to visit the country made by UN human rights experts, including the Special Rapporteur on Torture, the Special Rapporteur on Extrajudicial, Summary or Arbitrary Executions, the Working Group on Enforced or Involuntary Disappearances and the Special Rapporteur on the promotion and protection of human rights while countering terrorism. However, Algerian law still contains provisions which discriminate between men and women. Moreover, the authorities have not taken sufficient measures to protect women from violence, whether in the context of the conflict or within the family. Structural changes are needed if Algeria is to overcome the consequences of the human rights crisis which has blighted the country, in particular changes in law and in practice which reflect Algeria s obligations under the ICCPR. In this respect, we are concerned that the recommendations of the Human Rights Committee to the Algerian authorities in 1998 have not been adequately implemented and that this may signal a lack of political will on the part of the Algerian authorities to fully subscribe to their obligations under international human rights law. Article 2: the right to an effective remedy Article 2.3 of the Covenant lays down the obligations of state parties to provide an effective remedy to persons whose rights, as enshrined in the ICCPR, have been violated. Article 2.3 insists that victims should have a judicial remedy. The Algerian people have suffered grave and widespread violations of their human rights in the context of the internal conflict, including violations of the right to life (Article 6 of the ICCPR), violations of the right not to be subjected to torture or other cruel, inhuman or degrading treatment (Article 7), violations of the right to liberty and security (Article 9), violations of the right to a fair trial (Article 14) and violations of the right to recognition as a person before the law (Article 16). Yet, to date, the Algerian authorities have largely failed to investigate fully, independently and impartially these grave human rights violations. Algeria s third periodic report, in response to the recommendations of the Human Rights Committee of

7 4 Algeria: Briefing to the Human Rights Committee to hold proper and independent investigations into such human rights violations, stated only that the Algerian Parliament was entitled to set up a Commission of Inquiry, and that to have done so would have cast doubt upon the identity of the perpetrators and lent credence to the claims made by certain NGOs, often based on anonymous witness accounts that are impossible to verify. The Algerian authorities have, since 1999, adopted a series of legislative measures, aiming at turning the page on the conflict and at peace and reconciliation, which have prevented victims of human rights abuses committed by both armed groups and state security forces to obtain truth, justice and reparation, the very principles which underpin the right of victims to an effective remedy. Amnesty International is not opposed to measures of clemency and pardon, as long as they do not prevent the emergence of the truth, a final judicial determination of guilt or innocence and full reparation for victims and their families. Moreover, amnesty measures, if they provide impunity, undermine confidence in the justice system and future human rights protection. Amnesty International believes that the victims of serious crimes under international human rights and humanitarian law, such as those which were committed in Algeria, must be given guarantees of non-repetition, that is, assurances that perpetrators are prosecuted and that future crimes will not remain unpunished. Amnesty measures adopted by the Algerian authorities During the period under review in this briefing, the Algerian authorities adopted two significant sets of amnesty measures: the first one was adopted in and the second one in The Civil Harmony Law (No ) was passed and entered into force on 13 July 1999, after having been approved by the government and voted by the parliament and the senate. Two months later, in September 1999, it was also put to a national referendum which gave it large popular support. 6 Under this law, members of armed groups who surrendered to the authorities within six months from the date the legislation was passed and who had not committed or participating in killing, raping, causing permanent disability or placing bombs in public places were exempt from prosecution. Those who had committed such crimes were to receive reduced sentences, which would be further reduced for those surrendering within three months. The same measures applied to those who were convicted of such crimes or who were awaiting trial on such charges. Those wishing to surrender under the Civil Harmony Law could turn themselves in to the military, civilian, administrative or judicial authorities, who were to decide whether the person should be granted exemption from prosecution or brought to trial. In addition, the law contained a discretionary probation provision. For this purpose, Executive Decree no established probation committees in each wilaya (province), presided over by the general 5 CCPR/C/DZA/Q/3, 20 August The question asked in the referendum and to which the voters could respond by yes or no was: Do you agree with the President s approach to restoring peace and civil harmony?

8 Algeria: Briefing to the Human Rights Committee 5 prosecutor responsible for the area and composed of representatives of the Ministries of Defence and of the Interior, the commander of the gendarmerie for the wilaya, the chief of security for the wilaya, and the head of the Bar Council or his or her representative. Using Article 41 of the Civil Harmony Law, President Bouteflika passed Presidential Decree no on 10 January 2000 granting amnesty to the members of two groups which had declared cease-fires in October 1997, the Islamic Salvation Army (Armée islamique du salut, AIS) and the Islamic League for Preaching and Holy War (Ligue islamique pour la da wa et le djihad, LIDD). The presidential decree granted blanket immunity from judicial prosecution to the persons who belonged to organizations which decided voluntarily and spontaneously to put an end to acts of violence and which put themselves at the full disposal of the state and whose names are appended to the original of this decree. No appendix containing the names of the amnesty s beneficiaries has been published to date. Five years later, on 15 August 2005, President Abdelaziz Bouteflika issued Decree which published as an annex the Draft Charter for Peace and National Reconciliation, outlining a framework for measures to bring closure to the internal conflict and giving the president full authority to implement its provisions. The Charter proposed measures of exemption from prosecution or clemency for current and former armed group members, stated that security forces and state-armed militias acted in the interest of the country, and specifically denied that the security forces had been responsible for carrying out thousands of acts of disappearance, although it promised families of the disappeared compensation and recognition as victims of the national tragedy. The Charter was approved by voters in a referendum on 29 September On 27 February 2006, the Algerian cabinet approved the "Decree Implementing the Charter for Peace and National Reconciliation". 7 The law was approved by the cabinet, presided over by President Bouteflika, before it could be debated by the parliament, which was not in session at the time. The full text of the Decree was not published or disclosed before its adoption, shutting out any debate. The Decree instituted a blanket amnesty for the security forces and state-armed militias and extended the previous partial amnesties for members of armed groups given under the Civil Harmony Law, entrenching an already pervasive sense of impunity. Both state forces and members of armed groups are accused of committing crimes under international human rights and humanitarian law that, to date, have not been investigated. In the face of criticism by Algerian NGOs, the Algerian authorities argued that the Algerian people had overwhelmingly voted in favour of the Charter in However, that Charter did not explicitly mention that state security forces would benefit from an amnesty. Law no of the 27 February 2006 provides an amnesty to members of armed groups who surrender or are in prison, as long as they did not "commit, or were accomplices in, or instigators of, acts of collective massacres, rape, or the use of explosives in public places". Specifically, it orders that judicial proceedings be stopped against: persons who have 7 Law no of the 27 February 2006 Implementing the Charter for Peace and National Reconciliation.

9 6 Algeria: Briefing to the Human Rights Committee committed or been complicit in terrorism 8 -related offences and have surrendered to the authorities between 13 January 2000 and 28 February 2006 (Article 4 of Law no 06-01); persons who are wanted by the authorities for terrorism -related offences and who surrender to the authorities within six months from 28 February 2006 (Articles 5, 6 and 7 of Law no 06-01); and persons detained on accusations of terrorism -related offences, regardless of whether they have already been brought to trial or not (Articles 8 and 9 of Law no 06-01). The Law specifies that these measures do not apply to those wanted for, charged with or convicted of terrorist activities abroad which were not directed against Algerian interests. 9 Under the terms of the same law, those wishing to surrender can turn themselves in to Algerian embassies and consulates abroad or the judicial authorities, the national security forces and judicial police officers within Algeria (Article 12). The judicial authorities are to be notified of any surrender by such authorities (Article 14) and to stop judicial proceedings against those surrendering (Article 15). As for those who are excluded from amnesty measures, namely those who were convicted of acts of collective massacres, rape, or the use of explosives in public places, they can benefit from a commutation or reduction of their sentence under Articles 18 and 19 of the same law. Two separate sections below look at the impact of these laws on victims of human rights abuses by armed groups, on the one hand, and on victims of human rights violations by state agents, on the other hand. No effective remedy for victims of human rights abuses by armed groups The two sets of amnesty measures described above have denied victims of human rights abuses by armed groups their right to an effective remedy, and entrenched the impunity of perpetrators. The United Nations Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity states, Even when intended to establish conditions conducive to a peace agreement or to foster national reconciliation, amnesty and other measures of clemency shall be kept within the following bounds: (a) The perpetrators of serious crimes under international law may not benefit from such measures until such time as the State has met the obligation [ ] to undertake prompt, thorough, independent and impartial investigations of violations of human rights and international humanitarian law and take appropriate measures in respect of the perpetrators, particularly in the area of criminal justice, by ensuring that those responsible for serious crimes under international law are prosecuted, tried and duly punished. The Updated Principles define the phrase "serious 8 For a definition of terrorist and subversive offences in the Algerian Penal Code, see section on Article 15 in this briefing. 9 Although foreign governments seeking to deport Algerian nationals to Algeria on the grounds that they are suspected of terrorist activities have argued that they would not be detained or prosecuted under the 2006 Decree. For instance, see the case of Mustapha Taleb in United Kingdom: Deportations to Algeria at all costs, Amnesty International (AI index: EUR 45/001/2007, 26 February 2007).

10 Algeria: Briefing to the Human Rights Committee 7 crimes under international law" to include, among others, genocide, crimes against humanity, and other violations of internationally protected human rights that are crimes under international law and/or which international law requires States to penalize, such as torture, enforced disappearance, extrajudicial execution, and slavery. E/CN.4/2005/102/Add.1, 8 February 2005, Commission on Human Rights, Sixty-first session, Item 17 of the provisional agenda. Under the Civil Harmony Law (No , 13 July 1999), members of armed groups known to have committed human rights abuses, including killings of civilians, were granted amnesty and exempted from judicial prosecution, no matter what evidence of their responsibility for such abuses may have existed at the time of them being granted amnesty or may have come to light later. Amnesty International was told by Algerian government officials in May 2000 that prosecution had been initiated against some 350 people who had surrendered under this law (and the total number of whom, according to the same sources, is reported to be some 4,500). However, to date the authorities have not provided any exact figures concerning how many surrendered under this law, how many were prosecuted, and how many of the latter were acquitted or convicted and for what crimes. The Algerian authorities have not published either precise official figures on how many members of armed groups benefited from exemption from prosecution under the Civil Harmony Law or the 2000 presidential amnesty. Government sources have indicated to the press that over 1,000 AIS and LIDD members benefited from the subsequent presidential amnesty and that around 4,500 members of other armed groups surrendered to the authorities under the terms of the Civil Harmony law. But the names and exact number of those who benefited from immunity were not published. Some families of people who were killed by armed groups have since told Amnesty International that those who are responsible for the killing of their relatives were exempted from prosecution under either the Civil Harmony law or the presidential amnesty of 10 January This has led Amnesty International to believe that full and thorough investigations had not been carried out to establish what crimes surrendering armed group members might or might not have committed. 10 Since 13 January 2000, hundreds more armed group members are reported to have surrendered to the authorities. During this time, no legal provisions were in place to allow such persons to be granted exemption from prosecution, or even to receive reduced penalties. Justice Ministry officials confirmed this during a meeting with Amnesty International delegates in February 2003, stating that all armed group members who gave themselves up were systematically brought to justice so that any crimes they might have committed could be investigated. However, government authorities, including President Bouteflika himself, have 10 For more information, see Algeria: Truth and justice obscured by the shadow of impunity, Amnesty International (AI index: MDE 28/11/00, November 2000).

11 8 Algeria: Briefing to the Human Rights Committee indicated, since January 2000, that members of armed groups who surrendered voluntarily would still benefit from some unspecified measures of clemency. 11 Law no implementing the l Charter for Peace and National Reconciliation suggests that people have indeed surrendered after January 2000, as it confers exemption from prosecution to those who have surrendered between 13 January 2000 and the 28 February 2007 (Article 4 of the Decree). Moreover, the list of three excludable offences in Law no represents a retreat from the list of excludable offences under the Civil Harmony Law, which included the commission of, or participation in, crimes that led to the death of a person or a permanent injury (Article 3). Thus, the perpetrators of one or more individual murders, or acts of torture causing permanent injury, would be ineligible for amnesty under the Civil Harmony Law but apparently eligible under Law of 27 February Amnesty International has further concerns about the 2006 amnesty measures. Firstly, the list of excludable offences under Law of 27 February 2006, no matter how appropriate, does not extend to other grave crimes, suggesting that armed group members who murdered one or more persons will go free as long as the killings were not collective in nature. Secondly, the authorities have not provided information showing that those responsible for acts of collective massacres, rape, or the use of explosives in public places have been effectively excluded from amnesty measures and prosecuted. There is no publicly available official information on the exact names, numbers and offences of those who have benefited from immunity under Law of 27 February According to press reports quoting official statements, some 2,200 people who had been charged with or convicted of involvement in terrorist activities were freed from detention in March 2006 and in the following months. 12 The names of those released were not published, nor the nature of the crimes of which they were accused. Proposals to pardon or reduce the sentences of convicted prisoners must respect the principle that those convicted of serious human rights abuses should receive punishments that are proportional to the crimes they committed. Law of 27 February 2006 provides no such guarantees. It proposes to pardon persons who were convicted for supporting terrorism or for committing acts of violence other than collective massacres, rape, and bomb attacks on public places. Amnesty International received information about the release of several people charged with involvement in international terrorism, although they were not entitled to under the terms of the amnesty laws. Some of them were later rearrested and detained. Other detainees who would have been eligible for release were apparently kept in detention. This suggests 11 For more information, see Algeria: Steps towards change or empty promises?, Amnesty International (AI index: MDE 28/005/2003, September 2003) 12 An article from a French newspaper states that 2,629 detainees were released from Algerian prisons between March and September The article says that the names and numbers of those who have benefited from amnesty measures were given by the Algerian authorities to the French intelligence services (see Alger fournit à Paris sa liste noire du terrorisme, Le Figaro, 16 January 2007.)

12 Algeria: Briefing to the Human Rights Committee 9 arbitrariness in the application of Law of 27 February 2006 and gives little confidence that thorough investigations were conducted by the judicial authorities prior to deciding eligibility for amnesty. According to official statements, up to 300 members of armed groups surrendered to the authorities within the six-months prescribed by the Law. The authorities have not said whether all those who surrendered benefited from amnesty or whether some were referred to the judiciary for prosecution. Case: Mourad Ikhlef, and Algerian refugee in Canada, was arrested in 2001 in Montreal and forcibly returned from Canada to Algeria in 2003, on account of alleged links with another Algerian convicted of terrorist-related activities. Mourad Ikhlef had been sentenced in absentia to life imprisonment in Algeria in 1993 for membership of a terrorist group operating in Algeria and abroad. Upon arrival in Algiers, he was detained by the Department for Information and Security and reportedly put under duress. He faced three separate trials: in the first one he was retried for his 1993 absentia sentence and acquitted; in a second one, he was sentenced in 2005 on charges of membership of a terrorist group operating abroad aiming to harm the interests of Algeria, apparently solely on the basis of statements he had made while under custody of the DRS. A further trial is pending. On 26 March 2006 he was released and told that all judicial proceedings against him would be stopped in the context of national reconciliation measures. He was re-arrested a week later. On 9 April, the Minister of Justice Tayeb Belaiz was quoted as saying in the press that Mourad Ikhlef should not have benefited from national reconciliation measures because of his alleged involvement in planning attacks with explosives. However, Malik Medjnoun, who was arrested on 28 September 1999 and charged in 2000 with participating in the killing of singer Lounes Matoub in 1998, has not benefited from the amnesty measure under Law 06-01of 27 February 2006, even though his case seems to fit the conditions for eligibility for amnesty. He is still awaiting trial, eight years after his arrest (see Article 9). Thirdly, Article 47 of Law empowers the Algerian President, "by virtue of the mandate given to him by the 29 September 2005 referendum", to "at any time, take all other measures necessary for putting into effect the Charter for Peace and National Reconciliation.", therefore opening the way to future measures to grant impunity to perpetrators of human rights abuses. Actually, some official statements have suggested that amnesty provisions may be extended to those surrendering after the six-month deadline prescribed by the 2006 Decree. To date, the Algerian authorities have not taken the necessary steps to convince victims of human rights abuses by armed groups and their families that serious efforts are being made to establish the truth and to identify those responsible for the crimes and bring them to justice. The authorities have largely failed to thoroughly investigate and uncover the truth about the killings, abductions, rape and torture of thousands of civilians. Serious questions raised about the failure of the state to protect the civilian population, particularly at the time of the largescale killings of 1997 and 1998, have still not been answered. Even though there have been trials of thousands of individuals charged with and convicted of vague and generalized accusations of terrorism (often on the basis of confessions allegedly extracted under torture), these have done little to give confidence in the justice system to uncover the truth about

13 10 Algeria: Briefing to the Human Rights Committee abuses committed and to establish a final determination of guilt. Even in cases where the authorities claim they have conducted investigations, there has been a lack of transparency about the procedures and an unwillingness to provide the families of the victims with the details of the investigation and to make the findings public. Victims of abuses by armed groups have had no guarantees that perpetrators of human rights abuses have been brought to justice. In 2005, the U.N. Commission on Human Rights passed a resolution entitled, The Right to the Truth. It stresses the imperative for society as a whole to recognize the right of victims of gross violations of human rights and serious violations of international humanitarian law, and their families, within the framework of each State s domestic legal system, to know the truth regarding such violations, including the identity of the perpetrators and the causes, facts and circumstances in which such violations took place. The resolution goes on recognize the importance of respecting and ensuring the right to the truth so as to contribute to ending impunity and to promote and protect human rights. (U.N.C.H.R. Resolution 2005/66, adopted April 20, 2005) The U.N. s Updated Set of Principles for the Protection and Promotion of Human Rights through Action to Combat Impunity states, Every people has the inalienable right to know the truth about past events concerning the perpetration of heinous crimes and about the circumstances and reasons that led, through massive or systematic violations, to the perpetration of those crimes. Full and effective exercise of the right to the truth provides a vital safeguard against the recurrence of violations. The Principles also state, Irrespective of any legal proceedings, victims and their families have the imprescriptible right to know the truth about the circumstances in which violations took place and, in the event of death or disappearance, the victims' fate. Under Executive decree no of 13 February 1999, persons who have suffered bodily harm or material damage following acts of terrorism are entitled to compensation. Funds have been allocated by the authorities to the relatives of persons assassinated by armed groups. These funds have in many cases been distributed to the families concerned, although some have complained that they never received the money which had been pledged. Amnesty International welcomes measures taken by the authorities to compensate victims of human rights abuses by armed groups, but it is concerned that such measures do not constitute adequate reparation for the harm they have suffered. The Basic Principles and Guidelines on the right to a remedy and reparation for victims of gross violations of international human rights law and serious violations of international humanitarian law 13 provide that full reparation should include restitution, compensation, rehabilitation, satisfaction and guarantees of non-repetition. 13 Resolution adopted by the UN General Assembly on 21 March 2006 (A/Res/60/147)

14 Algeria: Briefing to the Human Rights Committee 11 Victims of sexual violence at the hands of armed groups There is one specific category of victims of human rights abuses by armed groups whose right to an effective remedy is seriously undermined: these are the hundreds of women who have been raped by members of armed groups. Some women were mutilated and killed after being raped, others were forced to stay with their abductors and forced to cook and clean for them. Some were able to escape, others were left behind by armed groups after being raped. Many suffer today the physical and mental trauma generated by such experience. Women victims of rape run the risk of becoming pregnant, contracting sexually transmitted diseases, and developing gynaecological problems. Women who have been subjected to sexual violence suffer moreover from the social stigma attached to rape and the possibility of being rejected by their husbands, relatives or community. As a result they rarely make official complaints or even prefer to keep their ordeal secret. Therefore, the extent to which sexual violence has been committed during the internal conflict in Algeria is not known. The Algerian authorities have recognised that rape occurred during the internal conflict. Amnesty International welcomes the fact that the amnesty measures taken in 1999 and in 2006 exclude from amnesty members of armed groups responsible for rape. However, to Amnesty International s knowledge, there has hardly been any prosecution of members of armed groups on charges of rape. Given the lack of information surrounding the application of the 2006 Decree, it is not known how many persons have been excluded from amnesty measures on account of committing a rape, nor how many of those who have surrendered may have been brought to trial and prosecuted for rape. The problem of unwanted pregnancies as a result of rape has received some attention in Algeria, in particular the issue of whether women pregnant as a result of rape could be allowed to abort. Seeking, undertaking and performing abortions are criminalized under articles 304 and 309 of the Algerian Penal Code. 14 Abortion is legally allowed in case the mother s life is threatened or her physiological and mental balance is gravely threatened, under article 308 of the Penal Code and article 72 of a 1985 law on the promotion and protection of health. 15 In 1998, the High Islamic Council, a state institution, in response to such question, ruled in a fatwa (case law) that women who had been raped could, in extreme cases where their life was under serious threat and this had been medically established, have access to abortion. The ruling also affirmed that women who had been raped had not lost their honour and that they should not be blamed or punished for having been raped. The Ministry of Health reportedly issued instructions in 1998 to allow abortion for women pregnant as a result of rape by armed groups under certain conditions. Amnesty International has not been able to obtain a copy of these instructions. Women s organisations members of the Wassila Network in Algeria, however, have denounced the lack of implementation of legal and religious provisions allowing abortion for survivors of rape by armed groups. There is no official information as to how many women may have benefited from such measures, however restrictive they are. [Amnesty International considers that all women pregnant as a 14 Both women seeking abortion and providers of abortion services are criminalized. 15 Law No.85-05, adopted on 16/12/1985.

15 12 Algeria: Briefing to the Human Rights Committee result of rape should have access to safe and legal abortion services, and be in possession of all the information necessary so as to be able to make a decision.] Women s organizations have also complained that victims of rape by members of armed groups do not benefit from rehabilitation provided by the government, including medical, psychological and other post-traumatic counselling, nor from compensation which other victims of armed groups have been able to receive. Measures of compensation adopted in favour of the victims of terrorism do not specifically mention survivors of rape, nor do they contain specific provisions to support their particular needs and rehabilitation. Nongovernmental organizations offer medical and psychological assistance to a limited number of individuals, but do not have adequate resources to provide it to the hundreds of women and girls who need help. The lack of such provisions is especially worrying in a society such as Algeria s, where victims of rape are forced to deal not only with the trauma caused by the crime, but also with the social taboos, shame and stigma attached to this sensitive issue. Many of the women who have been victims of abduction and rape by armed groups live in rural and socially conservative areas of the country, compounding the problem. Others, who have been rejected by their families or have left their homes for fear of stigmatisation, are homeless and jobless, in a society where the employment of women remains difficult. No effective remedy for victims of human rights violations by state agents During the period under review in this briefing, state security forces and state-armed militia have enjoyed an almost complete de facto impunity for human rights violations they have perpetrated during the conflict. If the 2005 Charter for Peace and National Reconciliation acknowledged the responsibility of armed groups in gross human rights abuses, it denied any responsibility of state security forces for the human rights crisis that has affected Algeria. Law of 27 February 2006 implementing the Charter provides sweeping impunity for state agents for any of their actions, and for state armed militia. Article 45 states: No legal proceedings may be initiated against an individual or a collective entity, belonging to any component whatsoever of the defence and security forces of the Republic, for actions conducted for the purpose of protecting persons and property, safeguarding the nation or preserving the institutions of the Democratic and Popular Republic of Algeria. The competent judicial authorities are to summarily dismiss all accusations or complaints. Article 44 states: Citizens who, through their involvement or their determination, contributed to saving Algeria and protecting the nation's institutions, performed acts of patriotism. This article, coupled with Article 45 quoted above, suggests that state-armed militia, believed to have also committed grave and widespread human rights violations, are also exempt from any prosecution.

16 Algeria: Briefing to the Human Rights Committee 13 Article 45 of the law explicitly contravenes Article 2 of the ICCPR, under which any person whose rights or freedoms as herein recognized are violated shall have an effective remedy, notwithstanding that the violation has been committed by persons acting in an official capacity. It bars victims and their relatives from seeking justice in Algeria and obtaining judicial remedies and prevents the truth about human rights abuses from emerging through Algerian courts. Moreover, Article 46 states: Anyone who, by speech, writing, or any other act, uses or exploits the wounds of the National Tragedy to harm the institutions of the Democratic and Popular Republic of Algeria, to weaken the state, or to undermine the good reputation of its agents who honorably served it, or to tarnish the image of Algeria internationally, shall be punished by three to five years in prison and a fine of 250,000 to 500,000 dinars. This article muzzles free speech and represents an additional impediment to the right to redress of victims of human rights violations by state agents. The law, however, introduces compensation measures for families of persons implicated in terrorism - that is, families of members of armed groups who have been killed (presumably by state agents) and who have no resources. These families can claim compensation on presentation of a certificate by the judicial police confirming that their relatives died while in the ranks of armed groups and of a certificate by the wali of the province where they reside confirming that they have little or no resources. Amnesty International is concerned that certificates to confirm the death of an armed group member may be established without a proper investigation into the circumstances of the killing (which could have been an unlawful killing or an extrajudicial execution) 16. According to recent official statements, out of 16,648 claims for compensation already retained by the authorities, 10,200 were made by socially deprived families who had a relative implicated in terrorism. Out of these 10,200 claims, 5317 are said to be under process and 2757 settled. Official statements have also mentioned that the list of those implicated in terrorism reaches 17,000. Law of 27 February 2007 also introduces measures of compensation for victims of disappearances. Enforced disappearances, numbering into the thousands, were one of the grimmest features of the internal conflict in Algeria. The failure of the Algerian authorities to provide an effective remedy for relatives of the disappeared during the period under review is summarised below. Enforced disappearances The U.N. Declaration on the Protection of all Persons from Enforced Disappearance states: The victims of acts of enforced disappearance and their family shall obtain redress and shall have the right to adequate compensation, including the means for as complete a rehabilitation as possible. In the event of the death of the victim as a result of an act of enforced disappearance, their dependents shall also be entitled to compensation. (U.N. General 16 See Article 6, right to life, below.

17 14 Algeria: Briefing to the Human Rights Committee Assembly resolution 47/133 of 18 December 1992, Article 19). On 6 February 2007, Algeria signed the new International Convention for the Protection of All Persons from Enforced Disappearance. The ongoing pain and suffering of relatives who are unable to get information from state authorities on the status of their relatives, or any investigation into their disappearance flies against a growing body of international law which views a disappearance as a continuing offence, so long as the whereabouts of the missing person have not been clarified. The U.N. Declaration on the Protection of all Persons from Enforced Disappearances takes a more affirmative view of state responsibility when disappearances are carried out by its agents. Article 5 states, In addition to such criminal penalties as are applicable, enforced disappearances render their perpetrators and the State or State authorities which organize, acquiesce in or tolerate such disappearances liable under civil law, without prejudice to the international responsibility of the State concerned in accordance with the principles of international law. (U.N. General Assembly resolution 47/133 of 18 December 1992) In its observations and recommendations of 1998 to Algeria, the Human Rights Committee urged the state party to establish a central register recording all reported cases of disappearances and all actions taken to trace them, and to assist the families to retrace their disappeared relatives. To date, Amnesty International is not aware of a case of disappearance that has been clarified in a satisfactory manner by the Algerian authorities. There is no publicly available list of victims of enforced disappearance, and too often the actions of the state party in relation to disappearances have seemed to obstruct the efforts of the families to retrace their loved ones and to deny them the right to an effective remedy. Moreover, the Algerian authorities have consistently denied state involvement in enforced disappearances. Since then, in contrast with previous years, the authorities have seemed to give some form of recognition to the problem of enforced disappearances and have taken steps with the stated aim to solve the question. However, these steps have had little effect in practice. As long as full, transparent and impartial investigations into cases of disappearance are not conducted, the truth about the fate of thousands of disappeared will not emerge and their relatives will continue to suffer anguish. In August 1998 the Ministry of Interior announced that offices would be opened in each of the country's forty-eight wilayas (provinces) to receive complaints about "disappearances." Many families of the disappeared were doubtful as to this initiative, because it was led by the Ministry of Interior, who supervised the security forces they suspected were responsible for the enforced disappearance of their loved ones. The powers of investigation of these offices were not made public. In 2001, Minister of Interior Yazid Zerhouni told the parliament that in the previous three years, these offices had reviewed some 4880 cases of persons declared missing. He said that among these cases there were persons sought by the authorities on account of crimes, persons killed in clashes with the security forces and persons killed by armed groups, persons currently serving prison sentences and persons released. No list containing the names of the 4880 cases or information found about them was ever published.

18 Algeria: Briefing to the Human Rights Committee 15 In 2001, a new official human rights body, the CNCPPDH, 17 was established and received families of the "disappeared" in its office in Algiers on a regular basis to listen to their concerns. CNCPPDH President Farouk Ksentini stated that he was in favour of the establishment of a national commission of inquiry to establish the truth about each of the "disappearance" cases, a measure that Amnesty International had long been calling for. In September 2003 the Algerian authorities established a commission on "disappearances" to serve as an interface between the Algerian authorities and families of the "disappeared". The commission did not have an official title, but is commonly referred to as the ad hoc mechanism (mécanisme ad hoc). The mechanism was set up for a duration of 18 months under the CNCPPDH. It was composed of members of the human rights body and was headed by CNCPPDH President Farouk Ksentini. The mechanism was mandated to collect information about "disappearance" cases, to facilitate communication between the families of the "disappeared" and the authorities and to elaborate proposals to solve the problem of "disappearances" in Algeria. The mechanism lacked the necessary investigative powers and mandate to work towards full, independent and impartial investigations into enforced disappearance. In particular, it did not have power to access information available in the archives of the security forces or ensure that it was preserved. It had no mandate to refer credible information pointing to the responsibility of individuals for disappearances to the relevant authorities or the judiciary. At the end of March 2005 its mandate expired. The head of the commission publicly excluded criminal prosecution of those responsible for the disappearances and proposed compensation payments to the families, many of whom continued to endure economic hardship. The commission remained silent on the state s duty to investigate serious human rights violations and to guarantee the victims right to an effective remedy. The head of the commission told Amnesty International that, on the basis of complaints which families had made to the authorities, it had concluded that 6146 individuals became missing between 1992 and The commission s confidential report to the President has yet to be made public, more than two years after it was submitted. The families of those forcibly disappeared have taken many steps to find out their fate. Many have contacted the police, gendarmerie and other security forces to try and obtain information as to where their relative would be detained and why. Many have presented their case to the judicial authorities, demanding that investigations be opened into the enforced disappearance of their loved ones or filing complaints to the courts on the grounds of arbitrary detentions. However, the justice system has largely failed to provide satisfactory answers to these families. Either families have received no response from the courts since their complaint was made, or there has been no progress in investigations, or complaints were closed on the grounds of lack of information or evidence. Families of the disappeared have reported that 17 the Commission nationale consultative de promotion et de protection des droits de l homme (CNCPPDH), the National Consultative Commission for the Promotion and Protection of Human Rights was established by presidential decree in March 2001 to replace the Observatoire National des Droits de l Homme (ONDH), National Observatory for Human Rights. The CNCPPDH has no investigative powers and is mandated to act only in an advisory role to the President.